BILL ANALYSIS
SENATE NATURAL RESOURCES AND WILDLIFE BILL NO: SB 1143
Senator Tom Hayden, Chair AUTHOR: Sher
VERSION:
Original: 2/28/97
Amended: 1/5/98
FISCAL: Yes
URGENCY: No
CONSULTANT: Kennedy
Jones
HEARING DATE: 1/13/98
SUBJECT: Penalties for trading in bear.
ISSUE: Should penalties for illegally trading in bear parts
be in relation to the market price of the bear parts?
SUMMARY: SB 1143 would set the minimum penalty for
illegally trading in bear parts at five times the market
value of the parts.
BACKGROUND & EXISTING LAW:
1. It is a felony to sell bear parts in California.
2. It is unlawful to possess bear meat except during open
season and in a few other circumstances.
3. It is a unlawful to take bear without a general
hunting license and without one bear tag for each bear
taken. Pursuant to legislation authored last year by
Assemblymember Machado, violations of the laws against
take are punishable by a minimum fine of $250 for the
first offense and $500 plus imprisonment for at least
30 days for the second offense.
4. The knowing unlawful taking for commercial purposes of
a mammal, the knowing unlawful possession for
commercial purposes of bear parts, and the knowing
unlawful sale for commercial purposes of wildlife
parts is punishable by imprisonment for not more than
one year or a fine of not more than $30,000. For a
second or subsequent violation that also involves a
violation of 5. below, the maximum penalty is $30,000
or imprisonment as mentioned in 5.
5. It is unlawful to sell or purchase, or possess for
sale, bear parts. The possession of more than one
bear gall bladder is prima facie evidence of
possession for sale. The penalty is a maximum fine of
$5,000 and not more than one year imprisonment. Where
a conviction is for possession of three or more bear
gall bladders, the maximum punishment is either a fine
of $10,000 or not more than one year imprisonment.
6. Any person who's property is being damaged or
destroyed or is in danger of being damaged or
destroyed by bear may apply to DFG for a permit to
kill that animal. Unlike applicants for permits to
take other imminently dangerous animals, applicants
for a permit to take bear must respond to additional
questions designed to show that taking the bear is a
last resort. Nevertheless, a person may kill a bear
that is in the act of injuring livestock.
7. Fish and Game Code requires the Department of Fish and
Game (DFG) to annually review factors which impact the
health and viability of the black bear populations in
order to determine whether the regulations
establishing hunting seasons and take limits comply
with the California Environmental Quality Act (CEQA).
DFG reports that there will be no significant negative
cumulative effects on the State's bear resources from
hunting.
8. According to a November 29, 1993 article in the San
Francisco Chronicle, prices for bear parts are as
follows depending on the condition of the part and
evidence of authenticity:
1. Skulls: $25-$50 boiled, $50 to $100 mounted
2. Hide: $50-$100 untreated, $500 tanned
3. Claws: $10-$25 from hunter to buyer, $50 to
jewelry makers
iv) Galls: $50-$100 from hunter to buyer, $100
to $200 to wholesalers, $500 retail in the Bay
Area, $5000 retail in Hong Kong, Taiwan and
Korea.
5. Meat: $1-$10/pound from hunter to retailer,
$15-$25/pound retail
PROPOSED LAW:
SB 1143 would set a minimum fine for the illegal sale,
purchase, or possession for sale of bear parts. The
minimum fine would be 5 times the market price of the bear
part in addition to existing penalties.
The bill would require DFG to create a listing of market
prices for bear parts and make that list available to
judges.
COMMENTS:
1. The author asserts that illegal sale of bear parts can
best be combated by removing the profit. Since the
market for bear parts fluctuates, the author believes,
the minimum penalty should be based on the market
price of the parts instead of a stagnant statutory
number. According to the author, DFG is the
appropriate body to provide lists of market prices for
bear parts due to DFG's extensive enforcement
experience.
2. Opponents argue that the fines would prove excessive
and unmanageable for well meaning but uninformed
people who, for example, sell bear parts at their
garage sale or use polar bear hair to tie fishing
flies.
3. Opponents object to the Legislature's delegation of
penalty setting authority to DFG. Finally, they
maintain that the penalties enacted in 1995, i.e.
maximum of $5,000 for each part and a maximum of
$10,000 plus possible jail time for possession of
three gall bladders, have yet to be proven
insufficient as a deterrent.
4. Supporters claim that bear poaching is a lucrative
business and current law is not sufficient to deter
poachers. Further, they contend that DFG has
sufficient sources available to biennially issue a
listing of market prices for bear parts.
5. How will DFG create a satisfactory list?
There is precedence for the Legislature to legislate
penalties based on fluctuating market value. Under
the Fish and Game Code, a person who violates certain
take and possession laws concerning abalone shall be
fined 5 times the market value of the abalone taken or
$10,000 whichever is greater. However, unlike the
market price of bear parts, the market price of
abalone is relatively easy to determine because there
is a legal commercial market for abalone.
In lieu of setting a minimum penalty as five times the
market price, the author may wish to consider other
alternatives such as imposing mandatory jail time for
the more serious violations, revocation of all DFG
licenses permanently or for a period of time, imposing
a higher minimum penalty focused on the most lucrative
bear parts.
6. The California Fish and Game Wardens Protective
Association believes that the DFG would be able to
provide a listing of market prices for bear parts.
7. What would be the maximum penalty under SB 1143?
The bill does not provide a maximum penalty for each
separate violation. However, existing law, Fish and
Game Code Section 12012 provides that penalty for
sale, purchase, and possession for sale shall not
exceed $30,000 or imprisonment as specified in this
bill.
SUPPORT:
California Fish and Game Wardens Protective Association
Mountain Lion Foundation
California Federation For Animal Legislation
Sierra Club California
Contra Costa Humane Society
The Fund For Animals, Inc.
OPPOSED:
The California Sportsman's Lobby, Inc.
Outdoor Sportsmen's Coalition of California
Safari Club International
11 Individuals